I am still digesting the award issued very early this morning by the UNCLOS arbitral tribunal on the Philippines claims against China in the South China Sea. Lawfare plans to post more comprehensive discussions of the award later today, including by me, but for now, let me quickly offer some short (quotable) takes.
- The arbitral tribunal ruled in favor of Philippines on virtually every substantive claim and on all of the major ones. It ruled that China’s Nine Dash Line is inconsistent with China’s obligations under UNCLOS. It ruled that Taiping Island, the largest land feature in the Spratly Islands, is a rock and not an island. It also ruled that none (zero) of the land features in the Spratlys are islands, and that many of them are not even rocks that would allow China to generate maritime rights.
- There is no doubt that the award is much more sweeping and damaging (legally) to China than was expected by most experts (or at least by me). The arbitral tribunal could have avoided a ruling on the Nine Dash Line, but they did not. The tribunal went “big” and decided basically every issue that was presented to it. It did not shy away from resolving difficult legal issues.
- The arbitral tribunal did not agree with the Philippines on every legal interpretation. For instance, it held that determining the status of a land feature as a “rock” or as an “island” requires a showing that the land feature lacks both an ability to sustain human habitation and an economic life of its won. The Philippines had argued that if only one of those factors was met, the land feature was a rock. The Tribunal disagreed, but in applying its own more stringent test, still downgraded Taiping Island to the status of a rock. So the Philippines prevailed even though its particular legal approach was not adopted.
- The Tribunal even went out of its way to declare that China is not an “archipelagic” state thereby heading off (legally) any Chinese attempt to draw “straight baselines” around the Spratlys and thus treat the whole area as a single entity for generating maritime rights. China has never done this, but it has threatened to do so. But even though the issue was not directly before the tribunal, they went out and did it anyway.
- I will have a longer more detailed post later today (hopefully) about the impact of the award on U.S. policy. But for now, I will say that the award mostly allows the status quo to remain intact as long as neither the Philippines nor China escalates. For instance, China can maintain its garrison on the Scarborough Shoal since it is a rock that generates a territorial sea. The Philippines can keep their ship on Second Thomas Shoal since it is a reef and since China has no basis for claiming sovereignty over that reef.
- There is one potential flashpoint that I will highlight for now. The tribunal held that Mischief Reef is not a rock, it is within the exclusive economic zone and on the continental shelf of the Philippines. But China has a very extensive artificial island on top of Mischief Reef. This is now an “illegal” artificial island under the tribunal’s award and China has no possible legal basis to maintain it there. Will the Philippines demand China’s withdrawal? How will it enforce such a withdrawal?
- Is it possible to win by too much? The complete and sweeping nature of the Philippines legal victory may make it harder for China to agree to any negotiations that do not exclude the award’s effects as a precondition. This could be a problem going forward.
So these are some quick thoughts. I hope to post more on how this award may impact U.S policy later today.